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Summary: The Asda equal pay litigation can proceed in the Employment Tribunal, following a decision by the Court of Appeal. In a judgment handed down on 22 June 2016, the Court of Appeal upheld the Tribunal’s decision to reject Asda’s application for an indefinite stay. If granted, the stay would have forced the claims to be heard in the High Court.

The Asda equal pay litigation can proceed in the Employment Tribunal, following a decision by the Court of Appeal. In a judgment handed down last week (Asda Stores Ltd v Brierley & Ors), the Court of Appeal upheld the Tribunal’s decision to reject Asda’s application for an indefinite stay. If granted, the stay would have forced the claims to be heard in the High Court.

The case concerns equal pay claims from about 7,000 current and former hourly paid store colleagues, of which approximately 30% are male. They claim that the (predominantly male) workers in Asda’s distribution depots are doing work of equal value to them, and yet are being paid substantially more. Counsel for Asda argued that the case could have an “enormous effect” on the retail trade and suggested that it is “the case that will have the single largest effect on the economy of the UK in recent years”. Given the importance and the complexity, he argued that the High Court would deal with the case better than the Employment Tribunal.

One-way legislation: no express power to impose an indefinite stay

The Court of Appeal upheld the decision that the Tribunal did not have power to impose a stay for the purpose of forcing the Claimants to transfer the claim to the High Court. Although the Equality Act gives the High Court power to transfer an equal pay claim to the Tribunal (by striking out the claim or issuing a temporary stay), the Tribunal has no equivalent power to transfer a claim to the High Court. However, under the Employment Tribunal Rules the Tribunal has general case management powers which include a power to stay proceedings indefinitely.

The key question was whether it would be lawful for the Tribunal to impose a stay for the purpose of compelling a transfer of jurisdiction from the Tribunal to the High Court. Lord Justice Elias confirmed that it was not. The Claimants had a clear statutory right to choose the appropriate forum in which to bring their claim. Although the Tribunal could use its general case management powers to order a stay in some cases, such as where it may be more appropriate to hear the claim in another country’s courts, or where parallel proceedings are being heard, neither of these were relevant here. The Tribunal did not have the right to order a stay merely because the High Court might be a more convenient forum.

The judge was influenced in his decision by the significant practical consequences of drawing the alternative conclusion. It would be prejudicial to employees because they would have to re-start proceedings (with the resulting additional stress, fees and potential time limitations) and would be at risk of having to pay costs if unsuccessful in the High Court. The judge also put weight on the fact that Parliament had not legislated for the Tribunal to have this power.

Not appropriate to impose an indefinite stay

The Court of Appeal also concluded that it would not have been appropriate for the Tribunal to impose an indefinite stay in the current proceedings. It disagreed with Asda’s argument that the Tribunal had adopted a “blanket approach” with regard to equal pay claims being held in the Tribunal and had failed to appreciate that this case raised novel issues. It had been entitled to take the view that the Employment Tribunal was “perfectly capable” of handling the claims. The Court of Appeal noted that very few High Court judges have experience in the equal pay field, whereas a number of “highly able” Tribunal judges do. Asda’s argument that the large scale public sector cases dealt with by the Tribunal were of limited relevance when dealing with private sector claims was also rejected.

Asda’s counsel made a number of concessions which Asda would apply if the appeal was allowed. However, these were not found to be relevant as the appeal was not upheld.

In praise of Employment Tribunals

Employers will note the Court of Appeal’s finding that the Tribunal will in most cases be the appropriate forum for hearing equal pay claims, even if they involve unprecedented complexity. In reaching this decision, it expressly praised the “outstanding judges” who sit in Tribunals, who are able to bring “highly specialist knowledge” to complex points of law.

Compare jurisdictions: Employment & Labor: International

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